43 F. 248 -

FEDERAL REPORTER,

voL 43.

it appears upon itsfacej and riot whether it has been honestly or dishonestly admiaistered. The fact that it permits arbitrary discriminations, and abuses in its execution,' depending upon no conditions, or qUalifications whatever, other than the unregulated arbitrary will of .. certain designated persons, is the touchstone by which its validity is to be tested. That there are likely to be abuses as in the case of the laundryol'diriance, both as to individuals and classes, there is no reason to doubt,'when an outburst of popular prejudice shall demand or countenanceit';and it is also liable to be abused from more unworthy motives, considerations and influences. The ordinance should prescribe some conditions, qualifications or disqmJifications, by which those who are to issue licenses are to be guided in their action, other than their own unregulated arbitrary wills. . After careful consideration, I am unable to take this ordinance out of the rule laid down in. the second headnote in Yick Wo v. Hopkins and Wo Lee v. Hopkins, 118 U. S.356, 6 Sup. Ct. Rep. 1064. As that decision is cOntrolling so fal' as this court is concerned, I am bound to dis-charge 'the petitioner, however willing Itnight otherwise be to yield my individual views to the judgment of the supreme court of the state. Let the petitioner be discharged. Shduld'the city desire to appeal to the supreme ODurt of the United appeal will begllidly granted. The question has reached such a state; that it is of the ,utmost importance that it be authoritatively decided; Until so decided the foregoing views will control 'the action of this court.
'&8

"

WITNBIS__

UNITED STATES ". HOLLIS.

Court, W. D. South Carolina. August 18, 1800.)
LA.W. . . . 20 U; S; St. at 'Large, 80, which provides that a defendant charged with crime shall, at .hil own request, but not otherwise, be a competent Witness, does not render competent a defendant who, by previoul convioUon ot an infamous crime, baa 10lt the'prlvUege of testifying.

At Law. The defendant being on trial for nolating section 5392, Rev. St., (peJjury,):wascalled as a witness in his own behalf. The district :attorney objected, producing the reoord of his conviction for an infamous crime, making him incompetent. A. Lo.throp, U. S. Dist. Atty'. A. Blythe, for defendant.
SnlON'tON, J. The act of 16th of March. 1878, (20 St. at Large', 30,) prondes that a defendant charged with crime shall, at his own request, J:>btbot otherwise, be a competent witnessj that is to say, he not .labor .under' disability because. he is· a party in· interest, and t ·no{;.

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withstanding this, may testify. But when a party offers himselfas a witness in his own behalf he must be treated as any other witness, and is subject to any exception which would apply to any other witness. In other words; the act frees him from a disability. It does not confer on him any peculiar exemption. So when a defendant is put on the stand as a witness his general character for truth may be attacked, and if he, by his conduct, had lost the privilege of testifying in courts of justice by the .commission of an infamous crime, this will attach to him, and prevent him from testifying in' his own behalf.

RAPID SERVICE STORE Ry. CO. '11. TAYLOR

et al.

(Circuit Court. E. D. Michi{lan. August 8, 1887.)

1.

PATENTS FOR INVENTION-ANTIQIPATION.

Letters patent No. 325,425, for a ClB/lh and parcel carrier, issued September. 1885, to Robert A. McCarty, consisting of the combination, with a way aud a carrier adapted to move thereon, of a spring, arranged to give. an initial impetus to the carrier for propelling it on said way, are not anticipated by the English patent. for atmospheric railways, issued to Jacob Brett in 1845, and to Thomas Swinburne in 1846, nor by the loom patents.
'

I;' SAME-LIMITATION OF CLAIM.

"

The:flrst claim of said letters patent for the combination, with a way and carrier "of m.eans for giv.ing an impetus to" said carrier, is limited by the concluding words, "substantially as set forth. " and is but a claim for the way. the carrier, and tlie springs.

S.

SAME-SPECIFICATIONS.

The third and fourth claim of said letters patent are for the combination of.a way. a carrier, and a "constructed and arranged" to give the carrier illl initial .impetus. Held, that It was unnecessary for the details of such construction. arid arrangement to be specified. Said letters patent are infringed by a device in which the carrier is propelled by the elasticity of air compressed between two pistons in cylinders of different sizes.

4.

SAME-INFRINGEMEliiT.

SAME-INVENTION·

. . Claim No. 17 of letters patent No. 825,618, issued September. 1885,to Robert .A. McCarty, .for .a, cash and parcel carrier, consistillg of the combination with a carrier of a receptacle, removably locked to such carrier, and a covel' for the receptacle, held permanently by the carrier. is void for want of invention,being but the combination of two elemellts which are used separately in lanterns.

In Equity. This was a bill in equity for the infringement ofletters patent No. 325,425,.issued to Robert A. McCarty, September, 1885, for a cash and parcel carrier; and patent No. 325,618, issued to McCarty upon the same <late, for a new ano useful improvement in store-service apparatus. The principal patent for a cash and parcel carrier contained the following statement of the invention:
"The invention consists, principally, in projecting the carrier containing pr supporting the cash or parcel along the way over or upon which It travels, by giving it an initial impetus of sufficient force to impel it to its destinafrom impelling the carrier by a continuously acting tion, as force, as by gravity, in the use of inclined ways down which the carrier travels.

1'EDERAiL BBl'ORTER,

vol. 43.

"Incarrying out my invention·.lpreferto employ springs!n which ()ooe \lp'to project the,car,riers. and these springs I prefer to make from being supported by the carriers. and tra;v, I also a way over which a camel' travels' Eackand forth. and to locate a proJectmg device at each end of the way, for' carrier an initial impetus sufficient to drive it,to the other: I'M of the,way. ' "For the purpose of illustration;,! have shown and shall now describe a specific fopn of apparatus embodying my invention, wishing it to be understood, however, that I do not limit myself specifically thereto, since the prin. ciple of the invention is capable of being embodied in various forms of apparatus." Claims 1, 3, 4, 6. and 7 -are charged to have beeninmnged by defendants, and they are as follows: "(I) In Of parcel c/,rl'ie,r, ,the combination with a way and carrier: adapted to move on said way,of mea'nll for giving an impetlls to said carrier, upon said way, substantially as set forth." for the "(3) In a cash'orl1lircel carrie'r, 'the combination, with a way and carrier adapted to move on said way. of a spring constructed and arranged to give purpose of propelling it on said an way, substantially 8S Set forth. , " , CI( l\Sthe thirQI except that the spring is described as a ·stationspr,itli"" .'.,,' "(6) 1n a cash or parcel carrier, the combh;lation with a way and carrier adapted to move on said way. of a projecting device located at each end ot llRidw;!.y,;forglvlng suohoarrier Rltinitial impetus sufficient to drive it over the ,',. "(7) The same as ntimbel' SlX; except that the words ·stationary spring' are substituted for ·projecting device.'" , cup, and it was olaimed thMdefendant infrtng.ed the seventeenth claim of this patent. Mestff8. Parker & Burton and M. B. PhiUip, for plaintiff. ' Geo,H{Lothrop", for defenda.nts.
:,lj'I';

1,ilObjection is taken the first claim of plaintiff's printhe sixth, unto it,) that it is an asse.rt,,8.J:,moDopolY for every, method of giving an impetus to a caSh carrier, irrespeotive'6fthe motive powe:r; ifi other 'Words, that it is a olaim for the principle of propUlsion, and not for a mechanical contrivance. W,e ,this, claim js eithertoQ prqad., or too indefinite to ' be of,any tbej>llii!itiff. If ,RSR combination of a way, iI.. carriEir'adapted' to move on'ijUp"4'waY,and' of. any and every means giVirig an impetus to su<:h clirrier;thelr'it is too' broad, since itwould propulsioii by 'the 'It 'is: an attempt to patent the prinOf prO{lelling a aoimpetus given at the ena of the:wire. His well that cannot be done.' Thus, in Wyeth v. StorIe, 1 lieldthat cutting ice ofa tlniformsize, 'by means 0(49 other power' buman, was the ,olaim ,of . ,,!lnd ,therefore V9id ·.. ; So in' 0'Rei1l'}i v. M01'se.15How.'62,U2, the eighth claim of the, MOl,'se patent, which was the use of the motive power of the electric or galvanic current;

to

RAPID· 'SERVICE STOltE BY· CO. .,. TAYLOB.

201

however developed, for marking or printing intelligibler.haracters at any distance, was held to be an attempt to shut the door against the inventions of other, persons to bring about the same result, and, therefore, not maintainable. Curt. Pat. .§§ 243, 244. But if this general description is to be construed as limited by the concluding words of the claim, "substantially as set forth," and this we deem to be the proper construction, (Stone v. Sprague,. 1 Story, 270; Gr.,a,y v.,James, Pet.C. C. 394; Seymour v. Osborne, 11 Wall. 516,547,) a new difficulty is encountered, since his use of springs is only one, and the "preferable," method of giving the carrier "an initial impetus ofsuffi{lient force to impel it to its destination, as distinguished from impelling the carrier by a continuously acting force, as by gravity, in, the use of inclined ways." The "initial impetus" here described is quite as general, and, in fact, a mere restatement, in slightly different language, of ,"the means for giving an impetus" stated in the claim, and is eq\lally objectionable as embodying a principle. We are forced then to construe this claim in connection with. the springs described in the specifications and illustrated in the drawings; and thus limited, the first and siXth claims are practically the same as the third and fourth, viz., claims for the way, the carrier, and the springs used in producing the impetus. 2. No infringement is claimed of the second and fifth claims. It is also argued that the third and fourth claims are void upon their face, because they do not contain elements enough to make an operative combination. They are for a way, a carrier,and a spring, but no mention is made of the means of putting the spring under tension, viz.; the cord by which the rubber spring is elongated, nor of any means of holding the car while the spring is being put under tension, viz., the catch, which holds the car until' the' spring is stretched, and then releases it and permits the spring to propel it. We had occasion to consider this subject very fully in the case of Inwpirator Co. v. Jenk8, 21 Fed. Rep. 911, and then came to the conclusion that in drawing the claims for a combination patent it was not necessary to include any elements except such as were essential to the peculiar combination, and affected by the invention. Other portions of the machine are. usually shown in the drawings to exhibit their relations to the patented combination, but they are wholly unnecessary to the validity of the claims. As said by the supreme court in Loom Co. v. Higgins, 105 U. 8.580.586: In setting forth his claims, the patentee "may begin at the point where his invention begins, and describe what he has made that is new, and what it replaces of the old. That which is common and well known is as if it were written out in the patent, and delineated in the It is perfectly manifest to the ordinary observer that a cord passing over a pulley is necessary to stretch the rubber spring, and the catch to hold the car while the tension is being applied. But neither of them were any part of the invention. While the omission of anything absolutely material to the utility of the invention described is a fatal defect in a description, this rule does not apply where the omission would naturally

J1EDERAL REPORTER,

vol.. 43.

btrsuppliedbyany pei'sollskilled in:the art when making the device. InChrr v. Rice, 1 Fish. Pat. Cas. 198, 204, it is said that the patentee need not specify the kind of power to be applied, nor the method of apit in working the machine. Indeed, it is extremely dangerous totM validity of a claim to include unnecessary elements of a combination, since an infringement would be avoided by the omission of any one of the elements., Of course, the omis;lion of an element becomes 'easier,as the number of elements increase..', For example, if the patentee hadinduded the cord and catch, and thE;) infringer had discovered some method. by which the spring could be operated without such cord or catch, it would be fatal to plaintiffls case, though the infringing device had included every other element of its claim. The claims themselves 'speak of a spring"constructed and arranged" to give the carrier an initial impetus, but the details of such construction and arrangement are quite unnecessary to be specified. In this view the cord and catch are really a part of the spring itself; 3. Starting then with the assumption that this is a patent for a spring projector of a carrier over a wire railway, we are next led to consider whether it is antictpated' by any of the devices offered in evidence. The English patent to Jacob Brett, issued in 1845, for atmospheric propulsion, and the manufacture of tubes for atmospheric railways, covers an atmospheric railway in which compressed air distributed from a'reservoir through pipes is employed to propel a car or train of cars. The The general arrangement of the device is as follows: At a central station,at which the aids compressed, is a reservoir or holder for the air. From this"reserv:oir or holder the air is distributed through pipes to devices which project upward through the track, and which are intended to operate in connection with the car when it comes along. The projections upward through the track are placed at or about,the distance of 8,000 yards apart, and, from one of these upwardly projecting devices to the othertrairi, is supposed to trayel by the impulse it receives passing over ,the upwardly projecting device, which is, in fact,a fixed piston co-operating with a slotted tube placed underneath the engine or car. The patent is obviously the result of some of the futile experimentsthat were made in England, when the science of railway travel was in its infancy, and before the present method of propelling railway trains had become firmly established. The device does undoubtedly col)tiina way and carrier, and a method of propulsioa by means of atmospheric elasticity, and is thus within the literalism of plaintiff's patent. At the same time, we think it very far from being an anticipation dfthis patent. It is not, in any sense of the term, a cash carrier, or a device adapted fQl' use as such. Indeed, it is intended for a purpose so entirely dissimilar to that of a cash carrier that not only would it require invention to adapt, it to that purpose, but we cannot conceive that it would be of any service to McCarty as a suggestion of a cash cartler. It lies SO far out of the track of. the invention that if he had seen,it while engaged in his experiments, he; would probably nevel' have 'given it a second , \Ve do not mean to say that llo.

RAPID SERVICE STORE RY. CO. ". TAYLOB.

253

railway car might not be constrncted and propelled along a suspended cable in such a way as to suggest an adaptation of the same principle to that of a cash carrier .device, but we are very clear that no such hint is contained in the Brett patent. We understand that under the case Tuckerv. Spalding, 13 Wall. 453, in order to constitute a double use, the structure and action of the prior machine must· be such as to suggest to the mind of an ordinarily skillful mechanic another use to which it could be applied without material change. Indeed, considering the recognized mlinner in which all railway cars are ani! ever have been propelled along the rail, we may take judicial notice of the fact that the Brett device is an old and abandoned experiment, which was never nor could have been of any practical use, although, as a mechanical device, it might be made to send a locomotive a short distance. The patent of Thomas Swinburne, of 1846, for an atmospheric railway, is open to the same criticism, and contains, if possible, a slighter suggestion of the McCarty device than the Brett patent. It refers to and describes an impossible and useless method of propelling trains over a track, by giving them at intervals, an impulse by the use of compressed air in the direction of their movements. As an anticipation of the McCarty patent, it is hardly worth a serious consideration. The Taylor patent is for a windlass water elevator. It shows an inclined track upon which travels a water-bucket and carrier. The wire, as it leaves the house, is for a short distance nearly horrizontal, and then descends rapidly to the spring. It isptovided with a car to which is attached a bucket. The car and ,bucket are let down the wire by an ordinary windlass. After the bucket is filled with water, it is·,hauled up by the windlass and cord, and when it reachps the horizontal way it catches the end of the spring, and is drawn againstthe force of the spring to the house, where it is emptied. On thewirdlass being released or thrown in the other direction, the operation of the spring is to throw the car and bucket along the horizontal J?9rtion of the way until it reaches the incline, when it descends by forcepf gravity. This undoubtedly resembles the McCarty patent somewhat more nearly than the two devices heretofore considered. The 'initial impetus, however, given by the spring in this case was not de''signed to propel the car over the way, but as the patentee himself states, merelytCto discharge it. from the receiver, so that it may pass down the wire by its own gravity, the wire within the receiver nearly horizontal." The weight of the rope attached to the car, and by which it is hauled up, and the friction caused by the necessity of unwinding the windlass, would effectually destroy the projectile force of the spring, and prevent its operating to give an initial impetus to the carrier for the purpose of propelling it on the way, in the manner described in plainin the Taylor patent were horizontal, there tiff's patent. If the would have to be another rope to haul it in the opposite direction from that in which the windlass hauls it, and the pull on this rope would not only be against the car, but also against the other rope, and the windlass·for working it. No initial impetus could be given to the bucket and carriage, which would be sufficient to suddenly set the windlas.s

':SfSl!

and lteepit "in' :motion. THe device is a slight modification fof,alilOthel'i and familiar device, by which caretre drawn over wires by pulling in opposite directions, oriby a roplfin one direction, and ,the force oLgravity in the other., " ' 'I'M, :loOlnhpatents, in all ofwhich a 'shuttle is thrown from one end of its'path to' the other by the blow or push of a picker-staff operated by 'theferce oCa spring, the Hotchkiss patent, by which a toy mouse is projeoted by an: interior spring, and the Ireland patent,' by rwhich a toy is propelled from'its house by the recoil of a rubber spring, 'areal! ;claimed as anticipations of the McCarty patent; but in none of 'them is there a way or: II. carrier in any proper sense' of the word. They no' more contain the prinCiple of McCarty's invention than does the ordinal1y,epringgun to which, they 'are much more closely allied. They all resemble the M9Car.ty patent, in that they contain the principle of prop'ulsioDibyasprlng,'which is as old as the use of the bow and arrow, but none of themoouldbe adapted to a'cash carrier without the employIDEmtoftheinventivefaculty. But if there were any doubt this,question, we should still consider:it our duty to resolve the doubt :in, favbrof. the patent in this case, sloceit is shown that the device has gone into very general use, and has largelysupptanted cash carriers propelled :by bthermeans. ,While the single fact that the device has gone into general use, and has displaced other devices which had previously ,been einployed for analogous uses, does not establish in all cases that the la.terdeviceinvolvesa patentable invention, it may, however, always be considered; and when the other facts in the case leave the question in doubt; it is sufficient to turn the B<)ale. Smith v. Vulcanite Co., 93 U. S. 486,495. 4. Beyolld doubt the most important: and ;serious question in thi!'. case is that ofinfringement. Defendant's apparatus,as described by the plaintiff's expert, Mr, Brevoort, is as follows: "Defendant'$:device consists of an uptight cylinder with a piston in it, which pist1lnean be by the operator moved up and down within the upright cylinder;'Projecting at rightangles from the lower part of the cylinder is another cylinder snialler in diameter, than the upright cylinder, and haVing within it attached to one end a piston-rod, which projects through the forward end .of the horizontal cylinder. This piston-rod, at the end, is provided with a spring plunger. the shaft of which is smaller than the piston'rod. This plUnger can be Jjushed into tbe piston-rod for. the distance of about half or tbcee-eightbs of an inch. On the end of the horizontal cylinder two jaws are arranged, which are provided with springs,and which jaws are forced apf\rtbytbe outward movement of the end of the piston-rod. The at their 'Outer extremitie,s are provided wHh jaws, which catch around the carrier. Thus, the carrier cannot move along the wire until these jaws or ,catches have separated, and this separation is effected by the advance movement of of the borizontal cylinder."
It will be observed here that the defendants do not employ a metallic or rubber spring to project its carrier, but we apprehend, and weUD,derstand it to be admitted in this case,that if: the carrier be actnally propelled over the way by the elastic expansion of an imprisoned body

BAPID.SEIWICE STOBE BY. CO· .,. TAYI.<>B.

155

of compressed air the McCarty patent is infringed. The theory of the defendants in this connection is that, the air contained in the cylinders between the pistons is simply a medillm, which transmits the power applied to the main Of upright piston to the plunger or horizontal piston. It becomes material, then, to inquire whether the piston in the horizontal cylinder is propelled by the elasticity of the compressed air behind it, or whether, if the two cylinders had been filled with a non-elastic liquid like water, the same, effect would be produced. It is very evident that two cylinder£'! and pistons could be made perfectly air-tight, as they are in pneof the, exhibits furnished the court, the descent of the main piston WOllldcompress the air; and when this piston had reached a cer1:11ill,poiI}t, the elasticity of the air socQll1pressed would. be sufficient to drive the horizontal piston, which would start suddenly forward and project the carrier. On the ,other hand, if the pistons were very loosely. fitted to the cylinders, no amo\lnt of force and no rapidity of movement would be stdficienttopropel the horizon:tal cylinder, since the air would escape so rapidly as. to be of no service. ,This is manifest in the'defendant's device, since, if the lever is pulled down slowly, and the air is thus given time to escape, the horiz<>ntal' piston is not moved. It is thus essential to the operation of defendant's device-First; that the pistons fit SO tightly that the air will.not escape as fast as it is compressed by the main piston,and yet so loose that it will move easily along the cylinder; second, that the lever be pulled rapidly down in order that the air shall not be given time to escape; so that for every inch of travel by the main piston the plunger piston travels five and two-tenths inches, the relative cubio capacity of the two cylinders being as nine to four. The experi:ments of Mr. Brevooi't: tend to show that assuming that it takes fourtenthsofa second to make the whole stroke of the lever from top to bottom, :1Oe lever must pass over more than one-third of its stroke before, the horizontal piston moves at all; in other words, the air must be compressed toa certain degree before the will start. We apprehend that if the vertical cylinder and its piston were removed altogether, no amount of atmospheric force applied, as, for example, by a pair of hand bellows, would be sufficient to drive the plunger piston. The only impression we can get from the testimony and experiments is that it is the elasticity of the compressed air that drives the plunger piston forward, and hence that the device is an infringement. Even if the defendant's theory were correct that the air acts simply as a medium through which the power is transmitted from one piston to the other, we are inclined to think that this air-impelling device is such a well-known equivalent to a spring device as to constitute an infringement. In the Stever patent for the shuttle motion for looms, there is an example of initial impulse given directly by spring. An ordinary barrel or clock spring, having been previously wound up, is let off at the proper time, and throws the shuttle to the opposite side of the machine, while a duplicating arrangement throws it back ap;ain. In the Ross loom patent of 1873, there is a similar spring employed to drive the shuttle back and forth. In the Richardson patent of 1872, which

258

I'EDERAL REPORTER,

vol. 43.

illfaTsO loom mechanism, there is a car which travels across' the maehine and carries the shuttle. This car is impelled by the movement of thEJ'piston in a cylinder. The movement of the piston being transmitted to the shuttle carrier by a body of air interposed between them, there is, ,therefore, shown in this patent, an air-impelling' device, having a large chamber and a small chamber, and means for compressing the air to throw a shuttle, as a mechanical substitute for the spring device used intllElother patents. The patent in suit is one of considerable importance, 'and appears to be the first in which the idea of propelling the carrier over a way by an initial impulse was reduced toa practical form. We think it entitled to a liberal application of the doctrine of mechanical equivalents, and as defendant's device is a manifest attempt to seize upon the dominating idea of the and, to evade the letter of the claims; we think plaintiff is entitled to the benefit of any reasonable doubt upon the question of infringement. 5. The seventeenth claim of patent No. 325,618 is as follows:
"In' a' store service apparatus, the' combination with a stretch wire of a wheel carrier traveling thereon, a receptacle removably locked to such car· l'jer, and a spring covel' for permanently by the carrier sub,Set

The'receptacle is locked to the carrier by a ring containing two slots in the. ordinary manllerin which a lamp is inserted in a lantern; from the bottonithe:spring is such as is sometimes used in the top of a lantern to the glass firmly in place. The invention consists only in comMl1ingthe two, in inserting the cash box into the carrier, and in h<Ming it firmly by the aid of the springs. As both elements ofthe combination are shown to exist in a lantern offered in evidence, though aotingiodependently, \Ve think there was no invention in combining the two, .and. the plaintiff's claim under this patent is not maintainable. 'l'heremust be a a decree for the. plaintiff upon the third, fourth, and seventh claims of the first patent, an injunction, and the usual reference to a master to compute the damages.

.

'

HENDERSON fl. CABELL.

251

HENDERSON

v.

CABELJ,

et al.

(Oircuit Court, N. D. Texas. June 2, 1890.)
1.

REMOVAL OJ!' CAUSES-MoTION TO REMAND-GROUNDS.

It is no ground for a motion to remand a cause to the state court that the petition for removal was not joined in by one of the defendants, who is merely a nominal defendant, against whom plaintifE seeks no relief, and who asks no relief against plaintifE. The suit had been brought in the state court to recover 18,500. Plaintiff alleged as ground for his motion to remand that he had brought suit in the district court on the same cause of action to recover $4,500, but that defendants procured the dis- . missal of that suit on. the ground that the amount actually due was less than $2,000, and that hence they were estopped from removing the present suit to tbe circuit court. Held that, by suing to recover $3,500. plaintiff is estopped from raising any objection to the jurisdiction of the circuit court based on the amount claimed..
AMOUNT.

2.

At Law. On motion to remand. C. a.Cobb, for plaintiff. J. M.McCormick, for defendants.
MCCORMICK, J. On July 26, 1888, the plaintiff instituted this suit in the state district court for Dallas county, claiming damages in the sum of just $2,000. After the time at which defendants were required to answer this petition by the rules of practice in said state court, and after defendllnts had answered the same, the plaintiff filed his amended. petition, cl8.hning damages in the sum of $3,500; and· thereupon the fendante presented their petition and bond for removal of the case to this court, on the ground that there was involved in the controversy a f 'deral question, stated in the petition for removal. On the 1st day of October, 1889, the state court accepted said bond, and ordered the mov9.1 of the to this court; and the transcript was filed in this court on the 21st day of October, 1889, The plaintiff now presents his motion to remand the cause on the following grounds, to-wit: "Fi1'St. It appears from tne record herein that all the defendants did not joinin the petition ami .bond for removal filed herein; the defendant S. C. (Jarroll not joining in the same. Second. The bond for removal herein is not payable to S. C. Carroll, the defendant not joining in the removal; and there is no removal bond herein payable to said S. C. Carroll. Third. The bond for removal is not conditioned'ss required by law, in that it fails to bind the petitioners for removal to appesr and enter special bail in such SUit, if special bail was originally requisite tberein. Fou1'th. The petitioners for removal did not file acopy of tbe record,. and enter their appearance in this court, on the first day of its next session beld next after filing the petition and bond for removal in the·state court, nor within twenty days after filing said petition and bond for removal in the state court. .Fifth. It appears that the transcript from the district court of Dallas county is an incomplete record of the proceedings had in said district court, in that it does not contain a copy of the answer of S. C. Carroll" which was filed ill said district court prior to the filing of the petition for removal therein. Sixth. As further cause for remanding, they show that on May 3, 1887, tbeplaintiff herein filed in the cir. cuit court of the United States for the northern district of Texas, at Dallas, a.: suit against W. L. Cabell and otl:1ers, the defendants, petitioners for ra- . v.48F.noA-17